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2012 DIGILAW 1726 (RAJ)

Kamlesh v. Rajendra Singh

2012-08-08

NISHA GUPTA

body2012
JUDGMENT 1. - This revision petition has been filed against the order dated 17.3.2009 passed by the learned Sessions Judge, Dholpur whereby the revisional court has rejected the application of the present petitioner under Section 125, Cr.P.C. and order of the court below allowing the maintenance of Rs. 1000/- infavour of the present petitioner has been quashed. 2. Brief facts of the case are that the wife has filed an application under Section 125, Cr.P.C. and after hearing both the parties, order was passed in favour of the present petitioner for Rs. 1000/- per month maintenance allowance. On revision, the order has been quashed. Hence this revision petition. 3. The contention of the present petitioner is that the order has been quashed only on the ground that decree under Section 9 of the Hindu Marriage Act has been passed in his favour and the execution has also been filed. The contention of the presesnt petitioner is that the order of maintenance was passed on 4.9.2006 whereas the application under Section 9 of the Hindu Marriage Act has been filed in 2007 and on the basis of this decree, maintenance could not be denied. 4. Per contra, the contention of the respondent is that wrong facts have been narrated in the revision petition. The application under Section 9 of the Hindu Marriage Act has been filed on 20.5.2005 which has been decided on 10.5.2007 and there is a specific finding that the present petitioner is residing separately without any reasonable cause. The present petitioner has also accepted the fact that she has left the matrimonial home at her own will. The dispute between the parties is that sister-in-law and her children are living with the respondent and which is not acceptable to the present petitioner and the present petitioner has also accepted the fact that the respondent is maintaining her sister-in-law and their children and that is why she has named the respondent with Lalita her sister-in-law. It has also been categorically considered by the revisional court that in spite of the decree under Section 9 of the Hindu Marriage Act, the present petitioner is not residing with the respondent without any reasonable cause and she is not having any reasonable and sound reason to live separately and on this ground the order of maintenance has been quashed. 5. 5. The contention of the petitioner is that filing of the application under section 9 of the Hindu Marriage Act is not sufficient to absolve the husband from his liability and reliance has been placed on Sunder Nath v. State of Rajassthan & ors. (2011 Law Suit(Raj.) 739) and Bheema Gurjar v. Geeta and anr. ( 2012 Law Suit(Raj.) 342). 6. It is true that only filing of the application under section 9 of the Hindu Marriage Act cannot absolve the husband from his liability to maintain her wife but here in the present case, a decree under Section 9 of the Hindu Marriage Act has been passed in favour of the respondent and execution proceedings have already been initiated, notice h s been sent to the present petitioner but she has denied the notice and the execution. She is residing separately without any reasonable cause and hence looking to the Bar of Section 125(4), Cr.P.C. the revisional court has rightly quashed the order of maintenance. 7. There is no infirmity or illegality in the impugned order, hence this revision petition is liable to be dismissed.Therefore, this revision petition is hereby dismissed... *******